Cloud over compensation

From the days of the colonial-era legislation, the Land Acquisition Act, 1894, to the present-day law, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, known as the LARR Act, controversies and confusion have clouded the process of acquisition and fixing of the quantum of compensation in any land acquisition exercise for development projects of both State and Central governments.

The British-era Act, according to experts, did not provide fair compensation, relief and rehabilitation packages. It allowed the Indian government to acquire private land for “public purposes” from individual landowners after paying a fixed compensation for the losses incurred by the landowners while surrendering their lands. The term “public purposes” was ambiguous, with a wider meaning allowing project developers to manipulate the amount they paid landowners. Although the Act stipulated that compensation was to be in accordance with the market value, the absence of guidelines in it left the term open to interpretation.

In 2012, the Supreme Court directed the state to enhance compensation to the highest market value of the land to any unwilling landowner, but the government does not seem to have taken a serious note of this.

The LARR Act came into effect on January 1, 2014. The Narendra Modi-led National Democratic Alliance (NDA) government decided to bring amendments to it in 2015, which activists claimed were “corporate-friendly”. The move faced stiff opposition and the amendment could not be passed in the Rajya Sabha. However, to expedite the process of land acquisition for projects, the NDA government promulgated the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, on April 3, 2015.

It contained provisions that would expedite acquisition for strategic and development activities such as national security or defence of the country, including preparation for Defence and Defence production; rural infrastructure, including electrification; affordable housing and housing for poor people; industrial corridors; and infrastructure projects, including projects under public-private partnership where land ownership vests with the government.

Further, it proposed to empower the appropriate government to exempt project executors from “Social Impact Assessment” (SIA) and the “Special Provisions for Safeguarding Food Security” of the 2013 Act. This was challenged in the Madras High Court by a Tamil Nadu-based non-governmental organisation called Poovulagin Nanbargal (Friends of the Earth).

Besides the 2013 Act, there are several Acts such as the National Highways Authority of India Act, 1956, the Railways Act, 1989, the SEZ Act, 2005, and the Atomic Energy Act, 1962, under which State and Central governments can acquire land for projects in specific sectors, though in consonance with the 2013 Act.

The Tamil Nadu government framed Rules under the 2013 Act and gazetted them on September 21, 2017. Under the Tamil Nadu Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Rules, 2017, any acquisition under emergency provisions (Section 40 of Acquisition under Urgency Provisions and Exemption) is exempt from an SIA study. This is also the main point of contention for farmers and environmental groups with regard to the eight-lane expressway project.

In cases that do not fall under the urgent category, District Collectors are empowered to issue appropriate directions ordering the SIA study. The main objectives and key activities of the SIA include consultations, surveys, and public hearings. However, here the State government does not mention whether the consent of gram sabhas and/or landowners is required or not. In other projects, where the State government deems fit the SIA could be conducted by identifying or establishing the Tamil Nadu State Social Impact Assessment (TNSSIA) Unit, “which shall be responsible for ensuring that the SIA studies [are done]”. The TNSSIA must empanel the eligible applicants for the same.

Before the 2013 Act, a National Rehabilitation and Resettlement Policy (NRRP), 2007, was formulated for project-affected families, including agricultural and non-agricultural labourers in a village. According to the NRRP, rehabilitation means restoration and or improvement of the living conditions of project-affected families and not just monetary compensation, which in most cases would be spent on prior commitments and immediate domestic needs. But the policy was not backed up with a law.

Hence, half-hearted efforts continue to plague relief and rehabilitation processes post-acquisition and they result in the displacement of people. According to activists, the Tamil Nadu government follows the LARR Act more in the breach while acquiring land for projects, the latest instance being the eight-lane expressway.

Evidence of this are the amendments effected to the Rules under the LARR Act, 2013. According to Sections 2 and 4 (1) of the Act, whenever the appropriate government intends to acquire land for a public purpose, it shall consult the panchayat, municipality or municipal corporation concerned at the village or ward level, as the case may be, in the affected area, and carry out an SIA study in such manner and from such date as may be specified by such government by notification. Nothing of that kind was done for the expressway project.

The Act says that the notification must be made available in the local language to the panchayat, municipality or municipal corporation concerned and in the offices of the District Collector, the Sub-Divisional Magistrate and the tehsil, and shall be published in the affected areas in such manner as may be prescribed and uploaded on the website of the appropriate government. But the Tamil Nadu government provided what were at best sketchy details about the acquisition to the victims.

The Act stipulates that an SIA must have various components such as livelihood of affected families, public and community properties, assets and infrastructure, particularly roads, public transport, drainage, sanitation, sources of drinking water, sources of water for cattle, community ponds, grazing land, plantations, public utilities such as post offices, fair price shops, food storage godowns, electricity supply, health care facilities, schools and educational or training facilities, anganwadis, children’s parks, places of worship, land for traditional tribal institutions and burial and cremation grounds.

The 2013 Act further states that the state must ensure the conduct of public hearings in affected areas and wherever environment impact assessment (EIA) is carried out. Moreover, as per Section 7 (1) of the Act, the government shall ensure that the SIA report is evaluated by an independent multidisciplinary expert group as may be constituted by it. According to the Act, irrigated and multi-cropped land should not be acquired except under “exceptional circumstances”. In such cases, “an equivalent area of cultivable wasteland shall be developed for agricultural purposes” the Act states.

Also, the acquisition of agricultural land shall in no case exceed such limits of the total net sown area of the district or State as may be notified.

Chapter IV of the 2013 Act says that whenever any area is required or likely to be required for any public purpose, a notification to that effect, along with details of the land to be acquired in rural and urban areas, shall be published in the following manner: (a) in the Official Gazette; (b) in two daily newspapers circulating in the locality of such area of which one shall be in the regional language; (c) in the local language in the panchayat, municipality or municipal corporation, as the case may be, and in the offices of the District Collector, the Sub-divisional Magistrate and the tehsil; (d) uploaded on the website of the appropriate government; and (e) in the affected areas, in such manner as may be prescribed.

Immediately after issuance of the notification, the gram sabha concerned shall be informed of the contents of the notification issued. Every objection shall be made in writing to the District Collector, and he shall give the objector an opportunity to be heard in person or by any person authorised by him in his behalf or by an advocate. However, the Act says that the decision of the appropriate government shall be final.

Determining market value

The Tamil Nadu Chief Minister said in the Assembly that compensation for the expressway project would be paid as per the 2013 Act. He said that it would be a minimum of Rs.20 lakh per hectare and Rs.340 per sq foot for concrete houses. But as per the Act, the Collector should determine the market value of the land to be acquired and calculate the total amount of compensation to be paid to the landowner. The Collector, having determined the total compensation to be paid, should arrive at the final award and impose a “solatium” amount equivalent to one hundred per cent of compensation. The solatium has to be in addition to the compensation payable to any person whose land has been acquired.

The Act says that the market value of the land proposed to be acquired would be set as the higher of a) the minimum land value, if any, specified in the Indian Stamp Act, 1899, for the registration of sale deeds in the area where the land is situated or b) the average of the sale price for similar type of land being acquired ascertained from the highest 50 per cent of the sale deeds registered during the preceding three years in the nearest village or nearest vicinity of the land being acquired or c) the consented amount in case the land is acquired for private companies or public-private partnership projects.

A report dated June 28, The Hindu , quoting the National Highways Authority of India regional officer Pawan Kumar, said that the NHAI would follow the Rules of the State government formed under the 2013 Act on issues of compensation. While acquiring land in rural areas, the multiplier factor would be applied ranging from 1.25 times to twice the market value. Salem Collector Rohini P. Bhajibhakre said that the quantum of compensation would be in the range of 2.5 times to 4 times the value of the land.

In previous instances, too, compensation was elusive for farmers. Several farmers who gave their land for the Ulundurpet-Salem National Highways project have been fighting it out in various courts for just compensation for a decade now. The State government, in many cases, has invoked the provisions of the old Land Acquisition Act.

Another affected lot that is waging a fight over fair compensation comprises the farmers of Kannankottai village in Tiruvallur district. The State government had acquired about 800 acres (one acre is 0.4 hectare) of patta land, 629.92 acres of poromboke and 54.59 acres of forest land to form a new reservoir by merging the Rajaneri and Thervaikandigai tanks in the village.

For the project, aimed at providing an augmented water source to Chennai city and estimated to cost Rs.330 crore, the State forcibly evicted farmers and destroyed standing crop. The Madras High Court did not halt the project but it ordered adequate compensation under the 2013 Act. Accordingly, the State government passed awards, including an interim compensation at 100 per cent land value with 30 per cent solatium and 12 per cent additional market value. But a few land owners filed a petition in the Madras High Court seeking more compensation. The court directed the State government to redetermine the compensation as per the provisions of the 2013 Act. It ordered the government not to dispossess the petitioners of their land until the entire compensation was paid.

The State government told the court that it was considering framing the Draft Rules under the 2013 Act on a compensation package for the Kannankottai farmers.

But the majority of those who have been evicted from their land and properties in the name of development remain neglected.